[2017] KEHC 2925 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO.950 Of 2014

IN THE MATTER OF THE ESTATE OF AGUMBA AWINDA (DECEASED)

BETWEEN

SAMSON OTIENO ADORN..........................APPLICANT/OBJECTOR

AND

DOMTILAH AKUMU OKORE..................PETITIONER/RESPONDENT

JUDGEMENT

Introduction

The deceased person, Agumba Awindadied sometimes on 11th April, 1975. Deceased was married to Rebeca Adero (Deceased) and they were blessed with 4 children but only the petitioner’s husband Joseph Okore Aumba(deceased) survived him. Joseph Okore Aumba (deceased) applied for letters of administration which were issued in his favour on 22nd January, 2015. The deceased’s estate comprisesproperty inLR. NO. Kisumu/Kadogo/543.

Application

The Notice of Motion before the court is dated on 31st July, 2015 and is made under Sections 38, 66(b), 71 and 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya). The applicant seeks the following orders:

1. That the letters of administration which were issued toJoseph OkoreAgumba, the petitioner/respondent herein, 22nd January, 2015, be revoked and/or annulled

Objectors/Applicants’ Case

The application is based on the grounds on the face of the application.The application is also supported by an affidavit sworn by the applicant/objector on 31st July, 2015.

In his testimony; the objector told court that the deceased was his grandfather and that the Joseph Okore Agumba (deceased) is his uncle and brother to his deceased father, Oriedo Agumba who died in 1987. It is his testimony that his deceased father bought land parcel LR. NO. Kisumu/Kadogo/543 and that it therefore does not form part of deceased’s estate. He faulted the petitioner for not including him and his siblings as dependents of the deceased.He stated that upon learning that his uncle had obtained letters of administration in respect of the deceased’s estate, he placed a restriction on the subject land which is still in force. He stated that his nephew has put up a permanent house there.

In cross-examination and upon being shown search certificates forland parcel LR. NO. Kisumu/Kadogo/543 by Mr. Olel, learned counsel for the petitioner; the applicant/objector conceded that the land was registered in the name of his grandfather AgumbaAwinda. He also conceded that he had no evidence to prove that his late father bought part of the whole of the land in question.

Respondent’s Case

Joseph Okore Agumba, the petitioner stated that the deceased had 4 children

Bodo Agumba (Deceased)

Oriedo Agumba Objector’s Father (Deceased)

Kesia Ayiemba (Deceased)

Joseph Okore Agumba Petitioner

It was his testimony that he was rightful heir of his father’s land because he was the last born of the family.

Determination

The matter before the court is an application for revocation and/or annulment of letters of administration which is governed bysection 76 of the Law of Succession Act and which provides as follows:

A grant of representation, whether or not confirmed, may at anytime be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) That the proceedings to obtain the grant were defective in substance;

(b) That the grant was obtained by the making of a false statement or by concealment of from the court of something material to the case

(c) thatthegrantwasobtainedbymeansofanuntrueallegationofafact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) Thatthepersontowhomthegrantwasmadehasfailed,afterdue notice and without reasonable cause either—

(i) To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) To proceed diligently with the administration of the estate; or

(iii) to produce to the court,within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) That the grant has become useless and inoperative through subsequent circumstances

The issue for determination is whether the objector/applicant’s case falls within the provisions of section 76 of the Law of Succession Act. The evidence on record has disclosed that the deceased had 4 children who included the objector’s father but only the petitioner survived him.

Section 66 of the Law of Succession Act provides as follows:

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Section 39 of the Law of Succession Act which is in Part V of the Act provides as follows:

Where intestate has left no surviving spouse or children

(1)Where an intestate has left no surviving spouse or children, the net intestate estates hall devolve upon the kindred of the intestate in the following order of priority

(a) father; or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e) the relatives who are in the nearest degree of consanguinity upto and including the sixth degree, in equal shares.

(2)Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.

The deceased was survived by his son Joseph Okore Agumba who died on 1st May, 2017 during the pendency of this cause. He was by an order issued on 27. 7.17 substituted with his widow Domtilah Akumu Okore.

From the evidence on record, Joseph Okore Aumba (deceased) was, in order of priorityunder Section 39 of the Law of Succession Act, the rightful person to administer the deceased’s estateexcept that he failed to disclose the existence of other dependents of the deceased’s estate including the objector herein.

The search certificates for land parcel LR. NO. Kisumu/Kadogo/543 shows that it is registered in the name of Agumba Awinda(Deceased). The applicant/objector’s contention that the parcel of land was bought by his father Oriedo Agumba (deceased) is not supported by any tangible evidence and it is therefore rejected.

As stated herein above, Joseph Okore Aumba (deceased) to whom the letters of administration were issued is now deceased. It would therefore be in the interest of justice to revoke the letters of administration issued to him to ensure that the interests of all the dependents are taken care of.

Decision

As a result,

1. The Notice of Motion dated on 31st July, 2015is considered and allowed

2. Letters of administration shall issue to Samson Otieno Adorn and Domtilah Akumu Okore as joint administrators

3. Upon issuance of the letters of administration, the administrators shall within 30 days apply for confirmation of the grant in accordance with the provisions of the law

4. Each party shall bear its own costs

DATED AND DELIVERED THIS5thDAY OFOctober2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Petitioner/Respondent - Mr Olel

Applicant/Objector - Ms Akol